SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 700/11 (Guelph)
DATE: 2015 12 31

RE: JENNIFER MAY LLEWELLYN and DAVID JAMES LLEWELLYN

BEFORE: EMERY J.

COUNSEL:
Jennifer May Llewellyn, in person, for the Applicant
David James Llewellyn, in person, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

EMERY J.

[1] I dismissed the motion for leave to appeal of the applicant mother from the interim order made by Justice Lemon for reasons given in my endorsement released on December 7, 2015. At the end of that endorsement, I indicated that the respondent father requested an additional $700 in costs to respond to that motion. I invited the applicant mother to file written submissions setting out her position on costs, and the respondent father to provide written submissions in reply, if any.

[2] The applicant mother has now filed her submissions on costs to dispute any costs claimed by the respondent father on the following grounds:

(i) the respondent father has failed to provide any evidence of legal fees and disbursements to substantiate his claim for costs;

(ii) the applicant mother incurred costs for legal fees and disbursements to bring the motion for leave to appeal, but states that she did not ask for costs as part of the “application” in order to demonstrate that her focus was on her family; and

(iii) costs granted by the court would take further money out of her family’s budget, which would negatively impact on her daughter, J.

[3] The applicant mother submitted that the court should decline the respondent father’s request for costs for one or more of those reasons.

[4] Costs claimed in a family law proceeding are governed by Family Law Rule 24. There is a presumption that the successful party on a motion is entitled to the costs of that motion under Family Law Rule 24(1). The respondent father is presumed to be entitled to the costs of the applicant mother’s motion for leave to appeal as he successfully opposed that motion. From the grounds listed by the applicant mother, it would appear that she does not oppose the respondent father’s entitlement to costs and she does not seek costs herself. Rather, she asks the court to exercise discretion and not award costs at all.

[5] In order of appearance, I shall address the grounds raised by the applicant mother.

No Evidence of Legal Fees and Disbursements

[6] The respondent father submits the decision of the Court of Appeal in Fong v. Chan (1999) 1999 2052 (ON CA), 46 OR (3rd) 330 as authority that self-represented litigants may be awarded costs.

[7] The courts in Ontario now recognize that self-represented litigants should be entitled to costs if they are the successful party in a proceeding, but not for costs calculated on the same basis as those litigants who retain counsel. As the court in Fong v. Chan explained, the self-represented litigant should not recover costs for the time and effort that any litigant in the case would have devoted to the case. The Court of Appeal sets out the entitlement to, and limits of, the self-represented litigant to costs in the following way:

[26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

[8] It is widely acknowledged that the modern costs rules are designed to serve three fundamental purposes:

(i) to partially indemnify successful litigants for the cost of litigation;

(ii) to encourage settlements; and

(iii) to discourage and sanction inappropriate behaviour by litigants.

[9] Although Fong v. Chan involved a claim for costs by a self-represented lawyer, the same three objectives for the modern costs rules were recognized as applicable to family law proceedings: see Serra v. Serra (2009) ONCA 395.

[10] Generally speaking, costs submissions do not require that evidence be filed by counsel or a self-represented litigant in support of those submissions. Counsel are expected to make accurate and truthful representations as to the time and effort expended for fees, and the precise amount for disbursements incurred when making submissions on costs as officers of the court. Self-represented litigants who give estimates of expended time and details of disbursements incurred may be called upon to provide evidence in affidavit form to substantiate their claims for costs if the court considers it necessary. This power flows from the court’s discretion over the costs process if those time estimates or disbursements seem unreasonable in the experienced eyes of the court.

[11] As the entitlement of the respondent father to costs is not in dispute, the level of costs and the amount remain to be determined. I was provided with no offer to settle to invoke Family Law Rule 18. That Rule might have applied to give full recovery of the respondent father’s costs if the result achieved in court matched or exceeded the terms of any offer to settle served.

[12] I accept that the respondent father incurred 30.5 hours to prepare, serve and deliver his responding materials to the applicant mother’s motion for leave to appeal. However, I am not prepared to award him $25 an hour that he states he earns from his employment as a fulltime research scientist at the University of Guelph. To do so would provide him with full recovery of his costs in the absence of an offer to settle. I also note that the respondent father made no mention in his submissions that the time spent on the preparation, service and filing of his responding material took him away from renumerative activity. Therefore, I have no basis to find that the respondent father has incurred a loss of opportunity cost.

[13] The respondent father makes reference to Rashid v. Shaher, [2011] O.J. 538 (S.C.J.) at para 78 where the court awarded the self-represented litigant $20 an hour. He also relies upon Warsh v. Warsh, 2013 ONSC 1886, [2013] O.J. 1474 (S.C.J.), where the court applied the rate of $30 per hour. In view of these considerations, I shall allow the respondent father $20 an hour for his time in the circumstances before the court.

Did the Applicant Mother Seek Costs?

[14] It is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what the unsuccessful party could reasonably expect to pay as those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 14579 (ON CA), [2004] 71 O.R. (3rd) 291.

[15] Although the applicant mother submits that she chose not to ask for costs, the notice of motion for leave to appeal contains a request for the costs of that motion on a substantial indemnity basis plus HST. The applicant mother therefore requested costs of the motion despite her written submissions to the contrary. Compounding that contrary submission, she was seeking costs of the motion on a substantial indemnity basis at a time when she was represented by counsel. This means that if she were awarded costs, those substantial indemnity costs would have been based on a lawyer’s rate. Therefore, I do not give any effect to the submission of the applicant mother that she was not seeking costs, let alone the level or amount of those costs.

How Costs Will Impact Upon the Applicant Mother’s Family Budget

[16] The applicant mother has provided no evidence or explanation to support this position. However, even if she would experience economic hardship if costs are awarded, the authorities are divided between those cases where economic hardship is considered to be a factor by the court when deciding costs, and those cases when it is not. See Baksh v. Sun Media (Toronto) Corp., 2003 CarswellOnt 24 and Sutherland v. Manulife Financial, 2011, ONSC 1170. I do not consider this to be an appropriate case to consider economic hardship as a factor on awarding costs.

[17] I am of the view that an award of costs for this motion properly serves the purposes and policy objectives behind the modern law of costs.

CONCLUSION

[18] I therefore grant costs of the motion for leave to appeal to the respondent father on a partial indemnity basis in the amount of $610 for his time, plus $35 in disbursements for stationery, for a total of $645. This amount is payable by the applicant mother within 30 days.

Emery J

DATE: December 31, 2015

COURT FILE NO.: 700/11 (Guelph)

DATE: 2015 12 31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JENNIFER MAY LLEWELLYN and

DAVID JAMES LLEWELLYN

BEFORE: EMERY J.

COUNSEL: Jennifer May Llewellyn, in person, for the Applicant

David James Llewellyn, in person, for the Respondent

ENDORSEMENT

EMERY J.

DATE: December 31, 2015